The art of writing is the art of discovering what you believe.
Gustave Flaubert

Tuesday 21 August 2012

Angora cat problem

A problem that can arise when issues of infringement and validity are tried separately. A patentee can argue for a narrow interpretation of the claims when defending the patent, and an expansive interpretation against the infringer. In European Central Bank v DSS [2008] EWCA Civ 192 (Court of Appeal for England and Wales, 19 March 2008) Lord Justice Jacob referred to Professor Mario Franzosi's comparison of this with an Angora cat:
When validity is challenged, the patentee says his patent is very small: the cat with its fur smoothed down, cuddly and sleepy. But when the patentee goes on the attack, the fur bristles, the cat is twice the size with teeth bared and eyes ablaze.
Hat-tip to the IPKat for pointing me towards this. Unfortunately I have been unable to find Prof Franzosi's original. Known in Germany, where the patent litigation system makes it so important, as the "fluffy cat" (which, pending confirmation of my translation, I make "flauschige Katze") problem.

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